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HomeMy WebLinkAboutMinutes BOARD OF APPEALS MINUTES July 10, 2013 PRESENT: Robert Cornell, Tom Willadsen, Kathryn Larson, Robert Krasniewski EXCUSED: Dan Carpenter, Dennis Penney STAFF: Todd Muehrer, Associate Planner/Zoning Administrator; Deborah Foland, Recording Secretary Chairperson Cornell called the meeting to order at 3:30 p.m. Roll call was taken and a quorum declared present. Mr. Cornell opened the floor for nominations for Chairperson. Motion by Krasniewski to nominate Mr. Cornell. Seconded by Larson. As there were no additional nominations for Chairperson, the floor was closed for nominations. Mr. Cornell accepted the nomination for Chairperson. Motion carried 3-0-1. (Mr. Cornell abstained) Mr. Cornell opened the floor for nominations for Vice-Chairperson. Motion by Larson to nominate Mr. Penney. Seconded by Krasniewski. As there were no additional nominations for Vice-Chairperson, the floor was closed for nominations. Mr. Penney accepted the nomination for Vice-Chairperson. Motion carried 4-0. The minutes of May 8, 2013 were approved as presented. (Krasniewski/Larson) ITEM I: 1880 STILLMAN DRIVE Di Renzo & Bomier on behalf of Sentry Security Systems, LLC-applicant, Old Dominion Freight Line Inc.- owner, requests the following variances to permit 8’ & 10’ high fencing in the minimum front and side yard setbacks: Description Code Reference Minimum Proposed Front (north) yard setback 30-30 (B)(1) 30’ 1’ Front (south) yard setback 30-30 (B)(1) 30’ 24’ Side yard setbacks 30-30 (B)(2) 20’ 1’ Mr. Muehrer presented the item and distributed photos of the subject site. He stated that a similar request was made January 9, 2013 for 10’ high fencing and was denied and a second request was made May 8, 2013 Board of Appeals Minutes 1 July 10, 2013 and the board voted to continue the hearing at its June 12, 2013 meeting. The petitioners requested this meeting be moved to July 10, 2013. The revised variance request reduces the front (north) yard fencing from 10’ to 8’ in height along W. Fernau Avenue with the remaining perimeter to be 10’ high. The subject site is located in the city’s North Industrial Park and is zoned M-3 General Industrial and is used for commercial freight and warehousing purposes. The applicant is proposing to construct 8’ and 10’ high electrically- charged fencing 12” inside the existing fencing that encloses the perimeter intruding into the minimum front and side yard setbacks. The applicant feels the fencing is necessary due to the threat of crime; however, only one report of theft is documented for the site. The Oshkosh Police Department prepared a revised “Crime Prevention Through Environmental Design” (CPTED) analysis after meeting with Old Dominion representatives and surrounding businesses providing numerous recommendations to improve security of the th premises. During the May 8, 2013 meeting the Board of Appeals was informed of the historical violations present on the subject property pertaining to expanding the off-street parking and loading facilities into the required side yard setbacks with gravel and/or asphalt which was never permitted. The petitioners communicated to the board that this area is necessary to maneuver trucks as well as to accommodate off- street employee parking and the functionality of the site would be compromised if the variances were denied. The board requested the petitioners supply truck turning templates to verify if on-site truck movements would be negatively impacted if the fencing variances were denied and after reviewing the material, staff concluded that internal movements could be negatively affected if the fencing was moved to meet current setbacks creating a justifiable hardship. Based on the information provided, approval of the fence variances is recommended with conditions. Jeff Berzowski, Di Renzo & Bomier, Two Neenah Center, Suite 701, Neenah, introduced the representatives attending the meeting today and stated that there were just two issues they needed to clarify. He was not clear if the 5’ setback variance mentioned in the conditions was requesting them to move the fence or to allow a five foot setback from the lot line to allow for employee parking. He further stated that they were on board with the recommended conditions and thought that the front and back of the parcel were within the required setbacks and they would not require a variance for those areas and that the variance request would be for the side yard setbacks only. Mr. Muehrer responded that the fence was not required to be moved and the aerial photos and submitted site plan did not match as the site plan depicted the fence further north and the petitioner had not submitted a revised site plan. After further discussion, it appeared that the north side of the site was the only problem however the staff report was not revised as a new site plan was not submitted. Mr. Berzowski commented that 10’ all the way around would be the ideal situation however it was not reflected in their request. Cindy Gsell, 121 Executive Center Drive, Suite 230, Columbia, South Carolina, commented that it appeared that they would be able to withdraw the variance request for the north and south setbacks and only require the variance for the side yard setbacks only. Mr. Krasniewski commented that the front (south) yard setback was proposed to be 24’ and the minimum setback distance was 30’. Mr. Muehrer confirmed that the front (south) yard setback variance was still required but the variance for the front (north) yard setback could be stricken from the request. Mr. Krasniewski commented that if the fencing on the south side could be 8’, why it could not be accomplished all the way around the site. Board of Appeals Minutes 2 July 10, 2013 Ms. Gsell responded that this would not be acceptable as the sides of the parcel are the most vulnerable and the 10’ fencing all the way around the site is what is most desirable. Mr. Krasniewski questioned what the landscaping requirements were meant to mitigate as it may shield the fence to some degree but it would not serve as a buffer to the adjacent uses. Mr. Muehrer replied that the landscaping was to mitigate the 5’ side yards on both sides of the parcel and the pavement condition is intending to address any areas to be utilized for functional movements on the site and it would be required to be paved if needed or have the pavement removed if not necessary. Ms. Larson questioned if this type of trans-shipment use was allowed in this district and if so, why the City does not have ordinances allowing the requirements they need to meet. Mr. Muehrer responded that the City has not had enough height variance requests to justify ordinance amendments to address this issue. Most of the other businesses that operate this type of use have larger parcels that can accommodate the City’s setback requirements for fencing higher than 6’. Ms. Larson questioned if the parcel had landscaping requirements that need to be met, would the variance request be subject to the landscaping requirements being completed first. Mr. Muehrer indicated that the landscaping plans were from the 1990’s and may or may not be accurate therefore staff would be meeting with representatives from Old Dominion to develop a current plan and the variance would not require that this be completed first. Motion by Krasniewski to approve the request for a variance to permit 8’ and 10’ high fencing in the minimum front and side yard setbacks with the following conditions: 1)Both side yards of the subject property are granted 5’ setback variances to permit off-street parking facilities to be expanded to allow for adequate on-site maneuverability of all semi trailers. 2)Both side yards are paved in accordance with the standards set forth in Section 30-36 of the City of Oshkosh Municipal Code and all gravel currently located on site be removed. 3)The landscaping plan is brought into compliance with the provisions set forth in Section 30- 35 of the City of Oshkosh Municipal Code. Seconded by Willadsen. Mr. Cornell noted that the request would need to be amended to drop the front (north) yard setback as that was no longer necessary. Motion by Larson to amend the variance request to remove the front (north) yard setback request. Seconded by Krasniewski. Motion carried 4-0. Motion carried 4-0. Finding of Facts: Unique situation. Board of Appeals Minutes 3 July 10, 2013 Location possessing two front yards. Unusual limitations to property. Physical limitations for trans-shipping operations need higher fencing requirements. ITEM II: 1126 JEFFERSON STREET Dennis Schwab-applicant, 1126 Jefferson Street LLC-owner, requests the following variance to permit an addition to an open off-street parking area in the minimum rear yard setback: Description Code ReferenceMinimum Proposed Rear Yard Setback 30-19 (B)(3)(d) 25’ 14’ Mr. Muehrer presented the item and distributed photos of the subject site. He stated that the property is zoned R-2 Two Family Residence District and is being used for multi-family dwelling purposes. The principal structure was built in 1963 with four apartment units and a detached garage with the general area characterized as low density residential in nature. The applicant is proposing to enlarge the existing rear yard off-street parking area with an asphalt addition to accommodate two additional parking stalls as current code standards require eight off-street parking stalls and the existing configuration provides four stalls. The property’s nonconforming use is creating a justifiable hardship as the multi-family residential use has been in place for 50 years prior to current parking requirements. The proposed 14’ rear yard setback is the least variance necessary and would have less impact on the neighborhood than on-street parking therefore approval of the variance is recommended. Dennis Schwab, 601 Oregon Street, stated that he has owned the property for ten years and was having a difficult time renting the units due to the inadequate parking on site. He currently has tenants parking on the grass and the building does not have any other alternatives as it was built prior to the City’s current parking ordinance requirements. Mr. Krasniewski questioned if the garage was 38 feet deep. Mr. Schwab responded that the garage structure was approximately 24’ by 24’. Mr. Krasniewski commented that the garage plus the additional parking area does not appear to match up to the numbers on the site plan and desired to verify if there would be 14’ of grass area left between the additional parking area and the lot line. Mr. Schwab responded that the 14’ on the site plan for grass area was accurate. Mr. Krasniewski voiced his concern over the 82% of the site that would be taken up by buildings and paving and questioned if this could be an issue. Mr. Muehrer indicated that storm water charges would be adjusted accordingly for the increased paved area. Mr. Krasniewski commented that he was concerned with where the storm water runoff would go with the additional pavement on the site as he felt drainage could be an issue for adjacent properties. Mr. Schwab responded that he has never had any water issues on this parcel and the water was absorbed on the site. Board of Appeals Minutes 4 July 10, 2013 Ms. Larson commented about the fire at this property recently and questioned if that may be the cause for the lack of ability to rent the apartments. Mr. Schwab replied that this was not an issue as the fire damage had been completely repaired. Ms. Larson stated that she did not like to see the use of on-street parking. Mr. Schwab agreed and commented that it was also an issue for snow plowing. Motion by Larson to approve the request for a variance to permit an addition to an open off-street parking area in the minimum rear yard setback. Seconded by Willadsen. Ms. Larson stated that she felt this case was a necessary evil and the concerns over storm water runoff were legitimate. She questioned if the City takes the storm water runoff into consideration with this type of development. Mr. Muehrer responded that some neighborhoods, particularly the older portions of the city, do not have drainage plans so in some cases there is not much that can be done regarding enforcement. Motion carried 4-0. Findings of Fact: Least variance necessary. Variance required to resolve parking limitations and bring the property up to current ordinance standards for parking requirements. ITEM III: 3195 SAWYER CREEK DRIVE Bradley/Samantha Stankowski-applicants/owners, request the following variance to permit a 6’ high chain link fence in the minimum setback from the Ordinary High Water Mark (OHWM) of Navigable Waters: Description Code ReferenceMinimum Proposed Structure Setback from OHWM 17.20 (3)(a) 75’ 25’ Mr. Muehrer presented the item and distributed photos of the subject site. He stated that the property is zoned R-1 Single Family Residence District and is being used for single family dwelling purposes. The principal structure was built in 2001 with an attached garage and the general area is characterized as low density residential in nature. The City of Oshkosh is required to administer the Winnebago County Shoreland District Standards for properties annexed into the City after May 7, 1982 and this property was annexed in 1997. Therefore requirements state that any new structure must maintain a minimum 75’ setback from the Ordinary High Water Mark from a navigable waterway and the petitioner is proposing to construct a fence to enclose the rear yard which would intrude 50’ into the required setback. The considerations necessary to prove a hardship are not present in this case as there is no unnecessary hardship present or meeting the restrictions is not unnecessarily burdensome and the hardship is not unique to the property. The stated hardships are personal circumstances and do not prohibit the residential use. The applications materials were forwarded to the Wisconsin Department of Natural Resources who provided written comment Board of Appeals Minutes 5 July 10, 2013 emphasizing that the fence is the owner’s preference and the hardship is personal in nature and may negatively impact the public therefore denial of the variance is recommended. Bradley Stankowski, 3195 Sawyer Creek Drive, stated that the application materials state that a variance request cannot be personal to the owner however putting up a fence he feels is always a personal issue. His house is 56’ from the floodplain and there is a constructed walkway going through the park adjacent to his property. He was told that a fence could not be constructed in this area as it may prevent the water from flowing properly through his property although he is not required to carry flood insurance. He stated that his need for the fence was to protect his son from getting hurt and that people using the walkway adjacent to his property torment his dog. He concluded with he just wants to keep everyone safe. Mr. Krasniewski questioned how the home was allowed to be constructed in this location. Mr. Muehrer responded that it was not clear but it appears that it must have been constructed prior to the Winnebago County Shoreland District Standards being put in place and the house at its current location is a nonconforming structure. Ms. Larson questioned how far the structure was from the Ordinary High Water Mark (OHWM). Mr. Muehrer indicated about 60 some feet. Ms. Larson then questioned if this was a floodway or floodplain issue. Mr. Muehrer responded that it was not an issue for either standard but the distance from the OHWM only. Mr. Stankowski commented that the land drops off dramatically behind the home. Mr. Muehrer confirmed that there was a heavily wooded area and substantial drop off in the back yard of the parcel. Mr. Cornell questioned what the distance was to the OHWM. Mr. Muehrer replied about 30’. Ms. Larson commented that the fence was a personal desire and suggested that the petitioner could consider locating the fence extending further to the west and less to the south of the home. Mr. Krasniewski stated that to meet the code standards the fence would have to be located in the front yard. Mr. Cornell commented that it would be an aesthetically poor option. Mr. Krasniewski stated that this variance request was similar to one recently reviewed for a patio in the area of the OHWM and this request was denied. Mr. Cornell commented that State standards do not permit a lot of allowances when it comes to these issues. Mr. Stankowski commented that the walkway running through this area is for public use and he reiterated that he just wants to keep everyone safe. He questioned if the fence could be considered a grandfathered structure such as the house. Board of Appeals Minutes 6 July 10, 2013 Ms. Larson responded that this would not be possible as the fence would have had to been installed when the home was built to be considered a grandfathered structure. Motion by Cornell to approve the variance to permit a 6’ high chain link fence in the minimum setback from the Ordinary High Water Mark of Navigable Waters. Seconded by Willadsen. Mr. Krasniewski commented that he does understand the petitioner’s point of view however to be consistent with past variances, we must deny the request. Ms. Larson commented that previous variances results could not be considered. Mr. Krasniewski questioned if the public walkway was permitted by the Wisconsin Department of Natural Resources (DNR). Mr. Muehrer responded that he does not know the history of the lands when they were platted and the request was reviewed by the Department of Public Works in an attempt to work out an agreeable plan however the proposal was denied by the DNR. He further stated that from the City’s standpoint, there is no issue with the fence however it is the City’s responsibility to uphold the Winnebago County Shoreland District’s standards. Mr. Krasniewski commented that the easement along the property appears to be an issue for the property owner. Motion denied 0-4. Findings of Fact: Hardship is personal to the property owner. OHWM regulations does not make it an option. IV: 1117 IOWA STREET GENERAL DESCRIPTION AND BACKGROUND Jacob Albright/Angela Tyler-applicants/owners, request the following variances to permit a driveway wider than the detached garage and in the minimum side yard setback: Description Code ReferenceMinimum Proposed Width of driveway 30-36 (B)(1)(c)(i) 26’ 29’ Side yard setback 30-36 (D)(2)(b) 6” 0’ Side yard setback 30-36 (D)(2)(c) 3’ 0’ Mr. Muehrer presented the item and distributed photos of the subject site. He stated that the property is zoned R-2 Two Family Residence District and is being used for single family dwelling purposes. The principal structure was built in 1920 and the detached garage was constructed in 2012 in the rear yard. The general area can be characterized as low density residential in nature. The applicant acquired a building permit in 2012 to pour an additional concrete approach to the detached garage and supplied a site plan Board of Appeals Minutes 7 July 10, 2013 depicting compliance with code standards however the as-built conditions of the driveway did not comply with the approved plan. The constructed driveway is 3’ wider than the garage and features a nonconforming 0’ setback at the property line neither of which is allowed by code requirements. A correction notice was issued to the property owner which is what is initiating the need for the variance request. There is nothing unusual or unique about the property that would limit compliance with the ordinance standards and if the property owner is concerned about drainage, the pavement width could be further limited increasing the setback. The request submitted is a self imposed hardship and the work was completed in a non-compliant manner therefore denial of the variance is recommended. Jacob Albright, 1117 Iowa Street, stated that he did not intend to go against his approved site plan but he amended the original permit to obtain more access for vehicles and personal use of the driveway. He further stated that the site plan for the garage was obtained by the contractor and he planned to do the driveway prior to the permit expiring. He claimed that City staff from the Planning Services office told the contractor that the amendment to the plan was not an issue and that he had 70% of the driveway replaced as there was too steep of an angle going to the garage and drainage was a problem. He also claimed that he spoke with City staff from the Inspections Department and was told he could place his driveway right up to the lot line. His adjacent neighbor recently tried to obtain a permit for the reconstruction of his driveway and was told he needed to maintain a 6” setback from the lot line and that both driveways needed to maintain said setback. He claimed he attempted to contact City staff again and did not receive a call back so he had the contractor proceed with pouring the driveway as his permit was about to expire. Mr. Willadsen questioned how this could have happened and if the property owner had any documentation in writing regarding what City staff had said. Mr. Albright responded negatively and stated that all the communications with staff were verbal only. Mr. Willadsen commented that allegations were made regarding City staff that were not present to discuss the matter and it was very difficult to make an informed decision without any documentation defending his claims. Mr. Albright indicated that he did not know why there was miscommunication regarding how the project should proceed and that his contractor contacted City staff in the Planning office. Mr. Willadsen questioned if any City staff approved the driveway being poured beyond the approved area. Mr. Muehrer responded that either Mr. Albright or his contractor communicated initially to staff that it was a shared driveway which was not correct and staff gave answers based on the faulty information provided. Mr. Albright stated that this was a hardship for his neighbor as he would have to walk on the grass area between the driveways when exiting his vehicle and the grass area would always be mud. He had his driveway poured to the lot line to get all the water away from the house and flowing toward the street. Ms. Larson questioned if the neighbor was planning on going to the edge of the property line with his driveway as well. Bryan Fournier, 1111 Iowa Street, stated that he was also planning on pouring a concrete driveway and he was more than satisfied with butting his driveway up to Mr. Albright’s down the lot line as this would help with the water flow and a foot of grass between the driveways would be useless space. Board of Appeals Minutes 8 July 10, 2013 Mr. Willadsen commented that the driveway at 1117 Iowa Street is three feet beyond where it should be in some areas and he did not understand how the completed job was done that far from what the approved site plan denoted. Mr. Albright responded that the neighbor would not have enough room to pull his vehicle in if the driveway had to maintain a setback between his lot line and their lot line. Mr. Willadsen stated that it does not appear to reflect that on the photos provided with the staff report. Mr. Fournier commented that he never put his car in the garage and proceeded to describe the width of the garage, garage door and driveway. Discussion ensued on the setback regulations for the driveway and the width. It was determined that a 3’ side yard setback was to be maintained beyond the rear plane of the home and the driveway could not be wider than the garage and the side yard setback between the front and rear facades of the principal structure could be no less than 6”. Mr. Krasniewski questioned if the driveway possessed a 0’ setback prior to its reconstruction. Mr. Muehrer responded that the driveway at 1117 Iowa Street had a 0’ setback that was grandfathered in as it was pre-existing. Mr. Krasniewski confirmed that the driveway was non-conforming until it was reconstructed. Mr. Muehrer confirmed that and stated that under the current circumstances, there was no hardship present. Mr. Krasniewski also questioned the distance between the new driveway and the home. Mr. Albright replied that it was 10 feet. Mr. Krasniewski stated that the driveway could have been moved over 3’ and it would have been adequate to build it as he desired without impeding on the required setback. Mr. Albright responded that he was only replacing a 26 by 20 foot area and there was too extreme of a slope for proper drainage. There was discussion on whether this work needed a permit and if City staff indicated this to the petitioner. It was determined that a permit was required and completing the work was a violation without one and the comments about what was said by City staff was considered hearsay and not permissible. Mr. Albright stated that he would be satisfied with maintaining the 0’ setback for the driveway where the two driveways meet. Mr. Krasniewski replied that it would have been possible as the driveway maintained a 0’ setback as it existed and was a grandfathered feature of the property however due to its improper reconstruction that was no longer possible without the granting of a variance. He further stated that he would have liked to hear from the contractor who did the work at this hearing. Board of Appeals Minutes 9 July 10, 2013 Ms. Larson suggested that the item be delayed and attempt to have both the contractor and the two City staff members involved in the alleged conversations present. Mr. Muehrer responded that it could be delayed however any testimony regarding it would still be considered hearsay as all the communications were verbal only. Discussion ensued on what the definition of a shared driveway was and what type of legal documentation was required to be possessed to declare it a shared driveway. Mr. Albright questioned if the driveway was moved over who would incur the costs for the movement of the driveway approach. Mr. Muehrer responded that the petitioner would have to contact the Department of Public Works for that information. Ms. Larson inquired if a shared driveway could be obtained at this point between the property owners. Mr. Muehrer replied that the City no longer approves shared driveways as they were in existence in areas that were developed long in the past but the concept does not work and the City no longer approves new ones. Motion by Krasniewski to approve variances to permit a driveway wider than the detached garage and in the minimum side yard setback. Seconded by Cornell. Mr. Willadsen commented that it was a difficult and frustrating situation particularly since the discussion and written documentation does not appear to match. Discussion ensued on how the situation could be rectified. It was determined that removing the excess concrete along the setback areas by the garage and along the lot line to match the original site plan was the only option as the 0’ setback was only legal until the driveway was reconstructed. Motion denied 0-4. Mr. Krasniewski inquired if there were any other steps that Mr. Albright could take at this point and if not, what happens now. Mr. Muehrer indicated that he could re-apply for the variance or he will have to make some alterations to the constructed driveway to meet current code standards. Finding of Facts: No extraordinary circumstances for granting variance. Would give property owner advantage that others do not enjoy. Driveway was built different than the submitted plan. There being no further business, the meeting adjourned at 4:45 p.m. (Willadsen/Larson). Board of Appeals Minutes 10 July 10, 2013 Respectfully submitted, Todd Muehrer Associate Planner/Zoning Administrator Board of Appeals Minutes 11 July 10, 2013